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United States v. Fennell

July 10, 2007

UNITED STATES OF AMERICA
v.
GEORGE FENNELL



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

MEMORANDUM DECISION AND ORDER.

Defendant George Fennell, who is charged with possession with intent to distribute "crack" filed various pre-trial motions. Defendant's motions are discussed below.

A. Suppression of Physical Evidence

Defendant moves to suppress evidence seized at his residence on the grounds that the warrant improperly relied on the statements of Defendant's minor nephew when he was questioned by law enforcement, and that the warrant was not sufficiently particular. Defendant's motion to suppress is denied.

1. Probable Cause

As an initial matter, Defendant alleges that the statement by his nephew was coerced. Defendant has not put forth any evidence indicating that the statements taken by the police were coerced, other than an affidavit by defendant's nephew.*fn1 The police officers in question credibly testified that the statements in question were made voluntarily and were not coerced, and without the benefit of cross-examination of defendant's nephew on the contents of his affidavit, the Court credits the testimony of the officers. Accordingly, the Court finds that the statements by defendant's nephew were not coerced and therefore properly supported the search warrant in this case.

Moreover, the Court notes that the warrant in this case was also based on information provided by a reliable confidential informant, who had previously provided information to the police for at least five years and that his information had led to at least 30 arrests for drug possession and possession of illegal firearms. The informant's testimony was also corroborated by information provided by defendant's nephew, and additional records searches conducted by the police. Accordingly, the informant's testimony provides an independent basis for a finding of probable cause to support the search warrant. United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993)("Information may be sufficiently reliable to support a probable cause finding if the [informant] providing the information has a track record of providing reliable information, or if it is corroborated in material respects by independent evidence."); United States v. Robinson, No. 05 Cr. 322, 2006 U.S. Dist. LEXIS 83981, *11 (N.D.N.Y. November 17, 2006).

2. Particularity

Defendant also moves to suppress evidence seized on the grounds that the warrant in question improperly identified his residence as a single-family residence when in fact it was a multi-family dwelling. Defendant's motion to suppress on this basis is denied.

"The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one particularly describing the place to be searched and the persons or things to be seized." Maryland v. Garrison, 480 U.S. 79, 84 (1987). The purpose of the particularity requirement was to prevent general searches. Id. "The requirement ensures that [a] search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Id.

The existence of a multiple occupancy dwelling violates the particularity requirement, if the agents had known, or should have known, that there were two separate dwelling units at the premises. Id. at 85. Courts should judge the constitutionality of the conduct of law enforcement "in light of the information available to them at the time they acted." Id. As a general matter, however, courts are instructed to view the warrants in a practical, rather than technical way. See United States v. Dorsey, 591 F.2d 922, 929 (D.C. Cir. 1978). Indicia of a separate residence include separate entrances, separate doorbells, separate house numbers, name plates, and mail boxes. See, e.g., United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994); United States v. Maneti, 781 F. Supp. 169, 181 (N.D.N.Y. 1991); see also Birthwright v. City of New York, 01 Civ. 3940, 2005 U.S. Dist. LEXIS 19787, * (S.D.N.Y. September 8, 2005)(in a § 1983 action, search by law enforcement held reasonable where there were no indications of multiple occupancy: "no separate doorbells, only one mailbox, one entrance, no intercom system, no name plates, and no apartment numbers").

Here, law enforcement acted reasonably in initially concluding that the residence in question was a single family dwelling. Defendant's nephew, who had indicated that he had been at the premises recently, told law enforcement that defendant conducted his activities at 294 First Street, and provided no indication that that structure was anything more than a single-family residence. (Tr: 45-46)*fn2 In addition, Lt. Centamore credibly testified that he was told by his confidential informant, whose reliability has already been discussed, that the premises was a single family home. (Tr: 98-99) Lt. Centamore also testified that he performed a records search in order to corroborate this information. The information he obtained indicated that defendant lived at 294 First Street, and did not indicate a unit number. (Tr: 96-97; GX 93) In addition, DMV records indicated that defendant's car was registered to 294 First Street, without reference to a unit number. (Tr: 100; GX 94) In addition, Lt. Centamore asked another officer to drive past the residence to get a description of the premises. That officer did not provide any indication that the residence was anything other than a single-family house.*fn3 (Tr: 101) The Court notes, for example, that the house only had one number, "294", and one main entrance, and did not have multiple nameplates or mailboxes in the exterior. (GX 1; GX 9)

Defendant argues that Lt. Centamore previously executed a search warrant on the "second floor apartment" of 294 First Street in January 2003, and thus, when executing the current warrant in August 2006, the police should have known that the premises was a multi-family residence. This argument fails. There is no indication that the officers here could have searched for the January 2003 warrant when conducting their inquiry for the August 2006 warrant as there is no internal database of prior warrants available to the Newburgh police. Nor does this Court fault Lt. Centamore for not remembering a warrant he executed more than three years earlier, given that he testified that he has sworn out more than 2000 warrants in his career, including at least 150 between January 2003 and August 2006. (Tr: 108)

In addition, Defendant argues that the officers should have checked utility records and records on file with the Newburgh Code Compliance Department, which would have indicated that the residence was a two-family dwelling. This argument fails as well. Law enforcement are not required to check utility records before conducting a search. To hold otherwise "would in essence place upon law enforcement agents the requirement of checking with the utility companies in every case." Maneti, 781 F. Supp. at 182. "The Court rejects defendant's attempts to impose upon the Government a checklist that must be adhered to in all investigations." Id. Rather, the reasonableness of law enforcement's ...


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